Saggio
Directive (EU) 2026/799: Private International Law Remarks on Minimum Harmonisation of Insolvency Law*
Antonio Leandro, Full Professor of Public and Private International Law, University of Bari Aldo Moro
24 Giugno 2026
*Il saggio è stato sottoposto in forma anonima alla valutazione di un referee.
Cambia dimensione testo
The paper addresses Directive (EU) 2026/799 from a private international law perspective. It argues that the Directive’s minimum harmonisation method can improve the functioning of cross-border insolvency proceedings but does not dispense with conflict-of-laws analysis, which remains necessary whenever the harmonised rules interact with non-harmonised, preliminary, or related legal issues. The paper examines avoidance actions, asset tracing, pre-pack proceedings, directors’ duties, creditors’ committees and selected ancillary questions, with particular attention to the relationship between the Directive and the European Insolvency Regulation.
Riproduzione riservata
Sommario:
1 . Introductory remarks
Directive (EU) 2026/799 of 30 March 2026, harmonising certain aspects of insolvency law (Directive 2026/799),[1] forms part of the broader EU project of improving the functioning of the internal market and the Capital Markets Union (now generally referred to as the Savings and Investments Union).
Its premise is familiar: significant divergences among national insolvency laws affect recovery value, the duration and cost of proceedings, and the ex-ante assessment of cross-border investment risk. Directive 2026/799 therefore lays down minimum requirements in targeted areas that are thought to have a direct impact on the efficiency and predictability of insolvency proceedings, especially where cross-border elements are present.
The Directive builds on the European Commission’s Proposal of 7 December 2022 and addresses three interrelated dimensions of insolvency law: the recovery of assets from the liquidated insolvency estate, the efficiency of proceedings, and the predictable and fair distribution of recovered value among creditors. It does so through rules on avoidance actions, asset tracing, pre-pack proceedings, directors’ duty to request the opening of insolvency proceedings, creditors’ committees and key information factsheets.[2]
The special regime for microenterprises contained in the 2022 Proposal was ultimately not retained as a self-standing title; Directive 2026/799 now merely provides that Member States may adopt or maintain laws which establish simplified winding-up proceedings for microenterprises (Article 4, para 5).[3]
The Directive is very likely to generate extensive debate during the transposition period, which generally expires on 22 January 2029[4]. The debate will not be confined to substantive issues. From the private international law perspective, the Directive is particularly relevant for two reasons.
First, it provides minimum harmonisation rules. Member States retain ‘gold-plating’ and may therefore maintain or adopt more protective rules in several areas, thereby preserving or even generating divergences among national regimes. Secondly, the Directive frequently leaves preliminary or related issues outside the scope of harmonisation.
The result is that Directive 2026/799 will rarely work in isolation. It will operate through a triangular relationship among the harmonised minimum rules, the lex concursus, and the law governing the relevant preliminary or related issues.
Against this background, the following pages examine the Directive sector by sector, focusing on the points where harmonisation and private international law most visibly intersect.
2.1 . Harmonisation
Directive 2026/799 introduces a minimum harmonised framework for avoidance actions to preserve the insolvency estate and protect the collective satisfaction of creditors.[5] It adopts a broad notion of ‘legal act’, covering deliberate human behaviour producing legal effects. The relevant temporal benchmark is the perfection of the act before the opening of proceedings, rather than its later performance or enforcement.
The Directive distinguishes preferences, undervalue transactions and acts intentionally detrimental to creditors. It also recognises exclusions and safe harbours, including ordinary-course transactions against fair consideration, certain payments on bills of exchange and cheques, transactions protected by settlement-finality and financial-collateral regimes, and netting arrangements in financial, energy and commodity markets. The consequences of avoidance are framed in restitutionary terms: the beneficiary must return the actual benefit or pay its monetary equivalent, and a satisfied claim may revive in accordance with national law. At the same time, the Directive preserves proportionality, legitimate expectations and selected civil and commercial claims for damages.
The Directive distinguishes preferences, undervalue transactions and acts intentionally detrimental to creditors. It also recognises exclusions and safe harbours, including ordinary-course transactions against fair consideration, certain payments on bills of exchange and cheques, transactions protected by settlement-finality and financial-collateral regimes, and netting arrangements in financial, energy and commodity markets. The consequences of avoidance are framed in restitutionary terms: the beneficiary must return the actual benefit or pay its monetary equivalent, and a satisfied claim may revive in accordance with national law. At the same time, the Directive preserves proportionality, legitimate expectations and selected civil and commercial claims for damages.
2.2 . Private international law issues
Directive 2026/799 expressly permits Member States to maintain or adopt laws providing a higher level of protection for the general body of creditors. This confirms the minimum harmonisation technique and leaves room for Article 16 EIR Recast.[6] That provision assumes that avoidance rules may differ among Member States and protects the legitimate expectations of a third party who proves that the act is governed by the law of a Member State other than the State of the insolvency proceedings and that that law does not allow any means of challenging the act in the relevant case.
The continuing relevance of Article 16 means that forum shopping strategies cannot be entirely excluded. Parties may still have incentives to rely on a lex contractus or another applicable law that makes avoidance more difficult than the lex concursus does.
A further issue concerns the notion of perfection. Directive 2026/799 applies to legal acts ‘perfected’. Yet perfection itself remains dependent on national law. Where the act is a contract, the Rome I Regulation will normally identify the law governing the formation, validity, and effects of the contract.[7] Where the act requires registration, the lex registri may become relevant, either as the law governing formal effectiveness or as the law determining third-party effects. Notably, Article 6 (2) allows Member States to ‘provide that a legal act, the effects of which are conditional upon its entry in a public register, is considered to have been perfected as soon as all the other requirements for its effectiveness have been met’. In security transactions, the lex rei sitae, the lex registri or a specialised conflict rule may also be decisive. The Directive therefore harmonises the consequences of an avoidable act but not the entire legal architecture that makes an act legally effective.
The exclusions for bills of exchange, cheques, settlement systems, financial collateral and netting also call for careful coordination with private international law. Article 13 states that the harmonised avoidance rules are without prejudice to Directives 98/26/EC,[8] 2002/47/EC[9] and 2019/1023[10]. In parallel, Article 12 EIR submits the effects of insolvency proceedings on, and the regime of avoidance actions concerning the rights and obligations of parties to a payment or settlement system or to a financial market solely to the law of the Member State applicable to that system or market. Directive 2026/799 should therefore be read as preserving sector-specific conflict rules, not as creating a general insolvency-law override of those regimes.
The provision on the revival of the satisfied claim also deserves attention. Article 11 provides that, where the beneficiary returns the benefit or pays its monetary equivalent, the claim satisfied by the legal act revives in accordance with national law. In cross-border terms, the lex concursus will determine the treatment of that revived claim within the insolvency proceedings, including lodgement and ranking. By contrast, the law governing the original obligation may still matter for issues not absorbed by insolvency law, such as the existence, content and contractual incidents of the claim. Directive 2026/799 does not expressly settle that interface.
Finally, Article 12 extends the consequences of avoidance to heirs, universal successors and, subject to knowledge, individual successors. It clarifies that ‘the extent of the liability of heirs shall be governed by national law’. Article 12 inevitably triggers private international law questions where succession or corporate succession is cross-border. In matters of succession, Regulation (EU) No 650/2012 will normally identify the lex successionis, including questions concerning the position and liability of heirs as a consequence of the succession.[11] The Directive’s reference to national law should therefore be understood as requiring, as a preliminarily step, the application of the forum’s conflict rules, rather than as directly pointing to the lex concursus.
3 . Asset Tracing
Asset tracing is one of the areas in which harmonisation most directly serves the efficiency of cross-border insolvency proceedings. Directive 2026/799 assumes that the recovery of value for creditors depends not only on substantive avoidance rules, but also on the insolvency practitioner’s ability to identify bank accounts, beneficial ownership information and assets recorded in national registers. The asset-tracing title, therefore, complements the avoidance title: one facilitates discovery, the other recovery. [12]
More precisely, while the asset tracing rules are designed to streamline the search for bank accounts, beneficial ownership information, and asset localisation, even in cross-border situations, the provisions on avoidance actions set minimum harmonised conditions for the judicial recovery of assets in the interest of the insolvency estate. Accordingly, the asset-tracing rules apply both to assets belonging to the insolvency estate and to assets subject to avoidance actions.
Asset tracing is not merely a matter of technical access to databases. It involves access to financial data, beneficial ownership data and registers whose publicity and confidentiality differ considerably from one Member State to another. In cross-border insolvency, the question is not only whether an insolvency practitioner or a court may search a register, but also which authority controls the request, which procedural remedies are available to the debtor or to third parties, and whether the information obtained may be used in avoidance litigation before another Member State’s courts. In this respect, the Directive dovetails with the EIR’s provisions concerning the extraterritorial powers of insolvency practitioners (Article 21). [13]
As regards bank accounts, Directive 2026/799 will facilitate insolvency practitioners and courts in obtaining information, ideally through the bank account registers interconnection system (BARIS) established by the new Anti-Money Laundering Directive. [14] Member States are required to designate courts or administrative authorities authorised to access and search national bank account registers and information (Article 14). Such ‘designation’ allocates internal and functional competence.
Moreover, if Article 3 EIR determines the (international) jurisdiction in which that allocation of internal and functional competence materialises, courts of other Member States may come into play as ‘designated’ courts in cross-border cases to access bank account information where 'necessary for the purposes of identifying and tracing assets belonging to the insolvency estate […] as well as assets subject to avoidance actions’ (Article 15(2)(b)). In other words, ‘designation’ for the purpose of accessing registers and ‘jurisdiction’ under the EIR do not necessarily pertain to the same courts.
Only in relation to searches in registers other than bank-account registers and beneficial-ownership registers does Directive 2026/799 refer to insolvency practitioners ‘regardless of the Member State in which they have been appointed’ (Article 19(1)).[15] States are bound by the principle of equivalence for ‘insolvency practitioners appointed in other Member States [not to be] subject to substantive access conditions that are de iure or de facto less favourable than those applicable to [national] insolvency practitioners’ (Article 19(2)).
Articles 15 and 18, which respectively deal with bank accounts and beneficial ownership registers, do not contain the same formulation. Arguably, this difference depends on the fact that, irrespective of whether access and search are reserved to courts or directly available to insolvency practitioners, those authorities may use interconnected registers that enable information to be searched across Member States. Conversely, non-interconnected local registers and non-publicly accessible registries are usually available to domestic authorities and have been made available to foreign insolvency practitioners appointed in other Member States to avoid discrimination and remove the practical difficulties they face. In other words, the issue of ensuring that ‘assets can be traced efficiently in the context of cross-border insolvency proceedings’ and foreign insolvency practitioners should be granted expeditious access mostly arises in respect of non-interconnected national registers and databases (see Recital 27).
However, courts are generally expected to act upon a request from insolvency practitioners when it comes to bank account information, [16] and, overall, a different standing between national and foreign insolvency practitioners generally makes no sense in the EU judicial space, particularly because ‘designated’ courts may be different from those that open the proceedings, and multiple proceedings may be opened vis-à-vis the same debtor.
Thus, it is laudable that Article 20 expressly establishes the ‘equivalence’ between local and foreign insolvency practitioners as to the right to initiate proceedings or appear before courts or authorities in order to claim assets on behalf of the insolvency estate. This reflects a general principle that applies irrespective of asset-tracing purposes.
4.1 . Harmonisation
Directive 2026/799 introduces pre-pack proceedings as a harmonised mechanism for the sale of the debtor’s business, or part of it, as a going concern. The structure is deliberately binary. A preparation phase, normally confidential and supervised by a monitor, is used to identify a purchaser and preserve business value. A liquidation phase then follows, in which the sale is authorised and implemented within insolvency proceedings listed in Annex A to the EIR, with the exception of preventive restructuring proceedings.
This model aims to balance speed and value maximisation while ensuring transparency and protecting creditors. The sale process must be competitive, transparent and market-based, or otherwise subject to a public auction. Related-party bids and credit bidding are subject to safeguards. The acquirer normally obtains the business free of debts and liabilities, except for employment law obligations and liabilities expressly undertaken. Directive 2026/799 also addresses executory contracts necessary for the continuation of the business and whose suspension would cause a business standstill.
4.2 . Private international law issues
Pre-pack proceedings consist of a binary split between the preparation and liquidation phases. The latter ‘shall be carried out by means of insolvency proceedings as set out in Annex A to [the EIR] other than preventive restructuring proceedings’ (Article 22, para 1; Recital 31); it follows that jurisdiction, recognition, enforcement and cooperation fall within the scope of the EIR. Additionally, Article 28 states that the liquidation phase ‘starts when a decision’ on the opening of insolvency proceedings is taken. This assumes, on the one hand, that courts have affirmed jurisdiction under Article 3 EIR and rendered ‘judgments opening insolvency proceedings’ as intended by Article 2 (7) EIR; on the other hand, that a pre-pack may also be arranged in the State where the debtor has an establishment if the business conducted there is of sufficient economic significance. Similarly, a pre-pack might cover the business of a member company whose COMI is located in the State where the holding has its COMI.
The key question is whether the preparation phase is sufficiently connected to proceedings listed in Annex A to fall within the EIR, either as an ancillary or preliminary procedure. It is particularly debatable whether the preparation phase – marked by the temporary stay of individual actions under Article 25 of the Directive, and resulting either in the liquidation phase (as such covered by the EIR) or in ordinary insolvency proceedings – represents a procedure ‘preliminary to one of the proceedings’ listed in Annex A pursuant to Article 1(1)(c) EIR.
There may be a case for this conclusion if it were not that Member States may provide that, when a creditor ‘files for insolvency during the preparation phase’, the opening of the liquidation can be suspended (Article 26). Accordingly, the preparation phase could be decoupled from the liquidation phase, thereby lacking direct functionality for it.
Alternatively, the preparation phase could qualify as preliminary proceedings with respect to the formal liquidation proceedings listed in Annex A and, as such, fall within the EIR. This conclusion may be rooted in Recital 35 of the Directive, which clarifies that ‘in the event that a court […] does not authorise the sale of a business, or part thereof, as proposed by the monitor, insolvency proceedings should proceed in accordance with the applicable national insolvency law’, adding that ‘the start of the liquidation phase is subject to requirements under national law for the opening of insolvency proceedings, such as the existence of a ground for opening such proceedings’. The court should not only determine whether the substantive grounds to open the insolvency proceedings are met for the liquidation phase to proceed; it should also assess early on whether it has jurisdiction and make that decision under the EIR.
This issue also has recognition implications. The preparation may generate acts that require cross-border effects: a stay of individual enforcement, a selection of the best bid, a transfer plan, directions addressed to or by the monitor, and so on. This is why the seamless continuity between preparation and liquidation is better served by an EIR-based characterisation. However, the EIR lacks a well-suited regime for confidential pre-insolvency sale processes that may or may not culminate in a listed liquidation proceeding. The forthcoming revision of the EIR should therefore expressly address the status of the preparation phase as part of the broader topic of recognition of out-of-court workouts[17].
Executory contracts raise a second set of issues. They are automatically assigned to the acquirer under Article 30 of the Directive, subject to certain conditions, exceptions, and specific rules for certain contracts.
In particular, ‘Member States may provide that the consent of the debtor’s counterparty or counterparties is required [for the transfer] depending on the type of contract, the nature of the parties, or the interests of the business’ concerned (Article 30, para 2; Recital 47). They may also provide that ‘the counterparty […] can terminate executory contracts’ if the ‘assignment of the contract would unfairly prejudice the counterparty’ (Article 30, para 3; Recital 48). Finally, States may provide that executory contracts relating to licences of intellectual and industrial property rights of which the debtor is the licensor are not terminated without the consent of the licensee (Article 30, para 4).
Starting with the general rule, given that the liquidation phase will be carried out by proceedings falling under Annex A of the EIR (except for preventive restructuring proceedings), the rule on automatic assignment as a harmonised provision is independent of the question of whether the lex concursus or the lex contractus would apply under the EIR to govern the effects on the contract. The displacement of such an inquiry, which lies at the crossroads of the EIR and the Rome I Regulation, is more apparent when the law governing the contract belongs to third countries, as Member States would share the harmonised effect of assignment in any case.
However, that harmonised rule will operate only to a limited extent. Firstly, the notion of ‘executory contracts’ does not include ‘netting arrangements, including close-out netting arrangements, on financial markets, energy markets and commodity markets, where such arrangements are enforceable under national insolvency law, and financial contracts’ (Article 2(1)(g)). Therefore, the EIR’s private international law treatment of such contracts remains unaffected, provided they fall within the EIR. This means, for example, that Article 12 still applies in order for ‘the effects of [the liquidation phase] on the rights and obligations of the parties to a payment or settlement system or to a financial market’ to be ‘governed solely by the law of the Member State applicable to that system or market’.
Secondly, even in the case of automatic assignment, the lex contractus still applies to determine the measures that the counterparty may take to ensure compliant performance by the debtor in cases of non-performance or defective performance (Recital 48, which refers to applicable contract law). Moreover, since Article 30 is ‘without prejudice to other termination rights’ (para 3), the counterparty may terminate the contract under the contractual terms, whose interpretation rests on the lex contractus according to Article 12 of the Rome I Regulation. Finally, since ‘obligations arising from executory contracts […] remain with the acquirer’ (Recital 50), the law applicable to the contract still applies to govern the contents and scope of such obligations alongside any other profile related to the performance.
Employment contracts require separate treatment. This is not merely because they do not qualify as executory contracts, but also because they are governed by a specialised body of EU rules.
Firstly, the liquidation phase may fall within the exception provided for in Article 5(1) of Directive 2001/23/EC (Recital 33 of Directive 2026/799, which rests on the clarification from the Court of Justice in Federatie Nederlandse Vakbeweging[18]). Secondly, when it comes to debts and liabilities acquired via pre-pack proceedings, Article 31 of Directive 2026/799 preserves ‘the obligations arising from employment relations affected by the sale of the business, or part thereof’ from the liberation effect embedded in the assignment of contracts. The acquirer may consent to bear the debts and the liabilities of the business.
Taken together, these provisions mean that, irrespective of the law governing the contract, the liquidation phase is considered genuinely liquidation-oriented rather than rescue-oriented, with the consequences that the automatic transfer of employees cannot be assumed, the acquirer may be freed from certain employment liabilities, and the protective regime of Articles 3 and 4 of Directive 2001/23/EC may be displaced where Article 5(1) of the latter applies. Recital 33 of Directive 2026/799 makes this conditional upon the pre-pack proceedings having ‘the primary objective to satisfy the claims of creditors to the greatest extent possible whilst preserving employment as much as possible’. Against this backdrop, Article 13 EIR applies, on the one hand, to subject the effects of insolvency proceedings to the law applicable to the employment contracts whenever the law differs from the lex concursus; on the other hand, it applies to identify, for jurisdictional purposes, the case of employment contracts performed in the Member State where the debtor has an establishment in order for that State's courts to approve the termination or modification ‘even if no secondary insolvency proceedings have been opened’ therein.
Security interests and encumbrances require caution. Article 38 – which applies to both the preparation and liquidation phases − allows their release in pre-pack proceedings under the same requirements as would apply in insolvency proceedings under national law, and permits Member States to detach the release from the holders' consent in pre-pack proceedings, even though consent is required in insolvency proceedings, except where the holders object to the release (Recital 51). Since no harmonisation applies to secured rights across the EU, and Member States retain the ability to adopt stricter rules on the holder’s consent in pre-pack proceedings, normative divergence is likely.
Accordingly, should the collateral be located outside the State of the pre-pack proceedings, the holder may rely on Article 8 EIR to protect its security right against different provisions of the law governing the preparation and liquidation phases[19]. This means that monitors and insolvency practitioners should assess the effects of Article 8 when setting up their respective plans.
However, substantial differences detrimental to the holder are unlikely, as Directive 2026/799 establishes an automatic-but-objectionable release that other law may counteract with a consent-based release.
Secured creditors may trigger a ‘credit bidding’, that is, by offering the amount of their secured claims as consideration for the purchase of the assets over which they hold a security. A secured creditor may be economically best placed to acquire the business, but the enforceability of its security may depend on the lex rei sitae, the lex registri or the law governing the collateral arrangement. Where the collateral is situated outside the State of the pre-pack, the court supervising the sale should be careful not to assume that the insolvency-law treatment of the bid exhausts the proprietary analysis, which must first determine whether the creditor holds a valid security right in the collateral.
Secured creditors are restrained from taking undue advantage in the bidding process. However, such a restriction ‘does not imply that [their] claim loses its security interest in respect of the portion of the claim that cannot be used in the bidding process’ (Recital 55). For that ‘portion’, Article 8 EIR still plays its role.
5.1 . Harmonisation
Title V imposes a duty on the directors of an insolvent company to request the opening of insolvency proceedings, except in the case of preventive restructuring proceedings. The relevant proceedings are those listed in Annex A of the EIR, again excluding preventive restructuring proceedings. The request must be submitted within three months of the date the directors became aware, or could reasonably have become aware, that the company was insolvent in accordance with national law.
Directive 2026/799 also allows Member States to provide that the duty does not apply to natural-person directors who are personally liable for all company debts, that the duty may be discharged by public notification of insolvency through a public register, and that it may be suspended where directors take measures designed to avoid damage to creditors and ensure equivalent protection for the general body of creditors. Article 42 then requires Member States to impose civil liability on directors, in accordance with national law, for damage to creditors arising from a breach of the duty under Article 40.
5.2 . Private international law issues
The directors’ duty to file for the opening of insolvency proceedings refers to proceedings covered by the EIR, except for preventive restructuring proceedings (Article 40). Thus, the directors must submit the request to the courts competent under the EIR. This means that the ‘national law’ governing the duty itself will generally correspond to the lex concursus of the proceedings to be opened, subject to the distinction between main and secondary proceedings.
Actually, this area of Directive 2026/799 is highly sensitive to the overlap between lex concursus and lex societatis. With comparable sensitivity, the Court of Justice approached the H and the Kornhaas cases, in which it qualified a similar German rule as an insolvency rule, although it was formally located in company law[20]. A functional approach led the Court to find that the provision was closely linked to the insolvency proceedings and aimed to preserve the estate for creditors. The provision imposing on managing directors the obligation to compensate the company was held to be similar to a rule laying down ‘the unenforceability of legal acts detrimental to all creditors’[21].
That reasoning is directly relevant to Articles 40 and 42.
Liability under Article 42 is triggered by damage caused to creditors as a result of the failure to discharge the duty referred to in Article 40. The protected interest arguably lies with those creditors who request the opening of the proceedings or who otherwise participate therein. The provision does not seek to restore the company's value but to compensate creditors for losses incurred from the late opening of insolvency proceedings.
Liability arises only where the company is insolvent, and the director breaches the insolvency-filing obligation. The cause of action is therefore structurally linked to insolvency. Put differently, unlike ordinary duties of diligence, the obligation to request the opening of the proceedings arises only on the occasion of insolvency.
The duty under Article 40 and the resulting liability therefore appear to ‘derive’ from the insolvency proceedings in the same sense in which the CJEU has developed the ‘direct derivation’ criterion for the vis attractiva of insolvency courts to attract the action. Both, in fact, are grounded on ‘derogating rules specific to insolvency proceedings’.[22] Moreover, this characterisation logically follows from the fact that an EU instrument on insolvency (Directive 2026/799) sets out the duty in question and states that liability arises from its breach.
Likewise, the liability action is envisaged by Article 42 to fall within the vis attractiva under Article 6 EIR and to be governed by the lex concursus[23]. Procedural standing will depend on how each Member State transposes Article 42, particularly whether the action is entrusted to the insolvency practitioner acting on behalf of the general body of creditors. Such an action would ordinarily be brought after the opening of insolvency proceedings, when it can be established that creditors are worse off than they would have been had the director complied with the duty to file in due time. The resulting increase in creditors' losses makes the case for the liability action against the director.
Other related actions may be brought against the director, which may fall into a grey zone (i.e. triggering ‘dual-context claims’[24]). Depending on the substantive issue, liability may or may not relate to insolvency or require or not require the actual insolvency as a constitutive element, or may ‘be brought [according to national law] even if there were no insolvency proceedings’.[25] Without an insolvency-law basis, insolvency proceedings, or other insolvency settings, the Brussels Ia Regulation would govern jurisdiction in such cases.[26] However, it is worth recalling that, even in the case of insolvency proceedings, the insolvency practitioners (or debtors in possession, if the lex concursus allows them to sue on behalf of the insolvency estate) may seek to join actions falling within the vis attractiva concursus and actions based on civil and commercial law in the State of the defendant’s domicile if the actions are related (Article 6(2) EIR)[27]. In the case of co-defendants, insolvency practitioners may bring the actions in the Member State where any of them is domiciled. Remarkably, for our inquiry, Recital 35 EIR furnishes the example of the action for director’s liability under insolvency law that relates to actions based on company law or general tort law.
The need to coordinate the lex concursus and the lex societatis also arises from the fact that Directive (EU) 2026/799 leaves the notions of ‘director’ (and ‘insolvency’) to national law. A person may be treated as a director under the lex societatis, as a de facto or shadow director under the law of the COMI, or as a manager exercising equivalent functions under the law of an establishment. The Article 40 duty may therefore attach to persons whose status must first be identified through the lex societatis or another relevant law before the lex concursus can impose the duty to file. Needless to say, all these laws may coincide particularly where the COMI and the connecting factors leading to the lex societatis all point towards the same Member State.
The scenario becomes complex where the company’s COMI and its registered office are located in different Member States. Directors of a company incorporated in State A but having its COMI in State B, in fact, may be subject to the insolvency-law duties and liability rules of State B, including any gold-plating compatible with Article 42, while performing ordinary directors’ tasks under other laws.
Moreover, while the Directive's three-month period establishes a common EU framework, more stringent national duties may be imposed (Article 4). A director of a company incorporated in one Member State but effectively managed in another may therefore be subject to different temporal standards, particularly where the COMI is disputed or has recently shifted.
At the same time, the anti-abuse mechanism embedded in Article 3 EIR should mitigate the risk of forum shopping. Under that provision, the presumption that the COMI coincides with the registered office does not apply where the latter has been transferred within the three months preceding the request for the opening of main insolvency proceedings. This limitation should reduce the scope for abusive relocations aimed at exploiting a more lenient timeframe for complying with the duty to file.
Member States may provide that the duty is discharged when directors ‘inform the public’ about the company’s insolvency (Article 41, para 2). This information is based on a notification in public registers. Discharging such a duty may equally have cross-border contours. The relevant public register may be situated in the State of incorporation, the State of the COMI, or the State where a branch is registered. Particularly in such circumstances, the effectiveness of the notice towards foreign creditors depends not only on formal publication, but also on whether the creditors can reasonably consult the relevant registers. However, interconnected registers, where available and operational, facilitate cross-border access to information and ease consultation.
Finally, Member States may also provide for suspension of the duty when the directors ‘take measures that are designed to avoid damage to the creditors’ and ensure a level of protection for them that is ‘equivalent to the protection provided’ by the duty to file (Article 41, para 3). Particularly when the body of creditors includes foreign persons or entities, such measures may be taken outside the State in which the proceedings should be opened.
6.1 . Harmonisation
Directive 2026/799 introduces a structured framework for creditors’ committees intended to strengthen creditor participation and oversight. Committees may be established after the opening of insolvency proceedings by decision or request of the general meeting of creditors or by creditors themselves if no general meeting is provided. The committee may also be established before the opening, where national law so provides. Its composition must, as far as possible, fairly reflect the different interests of creditors, including cross-border creditors. Its functions include monitoring, information, consultation and participation in major decisions, without subordinating the insolvency practitioner’s role.
The Directive also addresses costs, remuneration of professionals and liability. Creditors’ committees must act independently and in good faith, in the interests of the general body of creditors. Liability is limited, with exposure generally confined to intentional or grossly negligent misconduct, depending on the national implementation.
6.2 . Private international law issues
The creditors’ committee is primarily an organ of the insolvency proceedings. Its establishment, composition, voting procedure, internal working methods, access to information and procedural role should therefore be governed by the lex concursus. This follows the close functional link between the committee and the conduct of the proceedings.
The committee can help cross-border creditors ‘better exercise their rights and ensure that they are treated fairly’ (Recital 64). It is in substance the ‘foreign creditors’ as intended by the EIR (creditors which have their habitual residence, domicile or registered office in a Member State other than the State of the opening of proceedings: Article 2 (12)).
Foreign creditors may agree among themselves to coordinate their participation in the committee or to appoint a representative. There appears to be no obstacle to such an agreement being governed by a law other than the lex concursus, at least for issues that do not affect voting, procedural standing or the committee’s internal functioning as determined by insolvency law. Similarly, a mandate or contract for services concluded with an adviser or professional representative may be governed by the law chosen by the parties, subject to the mandatory provisions established by the lex concursus.
The liability of the committee members raises other private international law issues. To the extent that liability arises from the exercise of functions within the insolvency proceedings and from duties owed to the general body of creditors, it is closely connected with the lex concursus. Even more so, should the committees have the power to approve certain decisions or transactions and States ‘provide that the members of creditors’ committees have [in this case] the same liability as an insolvency practitioner’ (Article 50 (2)). The Rome I Regulation and the Rome II Regulations operate at the margins, for example, in cases of breach of contractual obligations with external advisers or of non-contractual obligations not linked to the insolvency proceedings.
The cross-border dimension of creditors’ committees should not be reduced to the mere inclusion of foreign creditors. The committee may become the institutional forum through which foreign creditors seek access to information, monitor the practitioner, and influence decisions on the sale of assets located in several Member States. Where employees, public bodies, guarantee funds or secured creditors are represented, the committee’s internal balance may also reflect categories that are not identical across national systems.
Confidentiality is particularly delicate. Article 48 (4) requires confidentiality of information obtained ‘in connection with the committee’s activities’, but it leaves to national law the practical design of sanctions and procedural safeguards. A foreign creditor sitting on the committee may be subject to duties under the lex concursus while also being bound by professional, banking, market-abuse or trade-secret obligations under another law.
7.1 . Parties closely related to the debtor
The notion of ‘party closely related to the debtor’ is central to avoidance actions and pre-pack safeguards. It triggers presumptions of knowledge and enhanced scrutiny, especially where transactions involve family members, corporate affiliates, directors, managers, employees or persons exercising control. In cross-border situations, however, the existence of the legal relationship giving rise to such ‘close relatedness’ may itself depend on a law other than the lex concursus.
For instance, the notion comprises persons who ‘work for the debtor under a contract of employment or are in an employment relationship with the debtor’ (Article 3(1)(a)(iv)), and ‘legal entities in which the debtor or [other qualified persons] is a member of the administrative, management or supervisory bodies’ (Article 3(1)(a)(v)). These relationships entail a legal inquiry under foreign law whenever the contract or the company is governed by a law other than the lex concursus. Likewise, corporate control and membership of management bodies may depend on the lex societatis, and family relationships and succession may fall under the applicable family or succession conflict rules.
7.2 . Debts ‘falling due’
Many provisions depend on debts falling due. Directive 2026/799 does not harmonise this aspect; instead, it refers to national law. Accordingly, while the debtor’s inability to pay— as a condition for opening proceedings—depends on the lex concursus, the ‘falling-due’ requirement is contingent on the contract’s terms, its applicable law, as well as measures capable of affecting the requirement, such as set-off arrangements, moratoria or debt-restructuring workouts, all of which may trigger inquiries as to the applicable law in cross-border situations.
7.3 . Emergency derogations
A final cross-border issue concerns the Directive’s emergency measures. Article 52 permits Member States to temporarily derogate from the national provisions transposing Titles II, V and VI in extraordinary situations that seriously disrupt economic activities. Although such derogations may be justified at the domestic level, they can yield cross-border effects. A temporary suspension of avoidance rules, directors’ filing duties, or creditors’ committee powers and obligations in one Member State may affect creditors established elsewhere and distort expectations where the debtor’s COMI, establishments, and assets are spread across the EU.
The key private international law question is whether the derogation forms part of the lex concursus or whether it may also affect transactions and duties governed by another law. Although Article 52 appears to be confined to the Directive itself — requiring Member States to ‘notify the Commission of a derogation’ and to ‘list the provisions of [the] Directive from which they have derogated’ (para. 3) — emergency measures are likely to constitute or generate overriding mandatory provisions. As such, they may apply in the forum irrespective of whether the issue in question would otherwise be governed by the lex concursus or by another law absent the emergency.
8 . Concluding remarks
Directive 2026/799 marks an important development in the EU insolvency law acquis. It narrows divergences in selected areas and improves the practical infrastructure for cross-border insolvency proceedings. Yet its minimum harmonisation method preserves a multi-regulatory environment in which private international law continues to perform an essential coordinating function.
The Directive frequently relies on notions and relationships that fall outside harmonisation and may be governed by the lex concursus, lex contractus, lex societatis, lex rei sitae, lex registri, or other applicable laws depending on the issue in question and the circumstances of the case.
Pre-pack proceedings deserve particular attention because the preparation phase, the stay of individual enforcement actions, the appointment and powers of the monitor, and the transition to the liquidation phase raise questions of jurisdiction, recognition and applicable law that are not settled by the Directive.
The forthcoming revision of the EIR should take Directive 2026/799 into account and facilitate its effective operation, just as it should in relation to Directive 2019/1023. Otherwise, the substantive convergence achieved through harmonisation would not be matched by a corresponding degree of certainty in cross-border cases.[28]
Note:
[1]
Directive (EU) 2026/799 of the European Parliament and of the Council of 30 March 2026 harmonising certain aspects of insolvency law [2026] OJ L 2026/799.
[2]
European Commission, Proposal for a Directive harmonising certain aspects of insolvency law (COM(2022) 702 final). On the Proposal see, among others, P De Cesari, ‘La proposta di direttiva sull’armonizzazione di taluni aspetti del diritto dell’insolvenza: riflessi sul Codice della crisi’ (2023) Il Fallimento 581; M Ferro, ‘L’insolvenza societaria nella Direttiva Insolvency III’ Giustizia Insieme (19 June 2023); A Leandro, ‘La proposta della Commissione europea per una nuova fase di armonizzazione del diritto della crisi e dell’insolvenza’ (2023) Analisi Giuridica dell’Economia 73; K Lemercier, ‘Nouvelle proposition de directive en vue d’harmoniser certains aspects du droit de l’insolvabilité’ (2023) Dalloz Actualité; T Mastrullo, ‘Vers une nouvelle avancée du droit européen des faillites: la proposition de directive “harmonisant certains aspects du droit de l’insolvabilité”’ (2023) Revue des sociétés 140; M Menjucq, ‘Harmonisation d’autres aspects importants du droit de l’insolvabilité: actions révocatoires, traçabilité des actifs, responsabilités des dirigeants, comités des créanciers’ (2023) Bulletin Joly Entreprises en difficulté, no 5; L Panzani, ‘Osservazioni ragionate sulla proposta di una nuova direttiva di armonizzazione delle leggi sull’insolvenza’ (2023) Diritto della crisi; K Silvestri, ‘La proposta di direttiva del Parlamento europeo e del Consiglio sull’armonizzazione di taluni aspetti del diritto dell’insolvenza’ (2023) Diritto della crisi; SM Schubert, ‘Das deutsche Insolvenzanfechtungsrecht und die Mindestharmonisierungsvorgaben des Richtlinienentwurfs COM(2022) 702 final’ (2023) Neue Zeitschrift für Insolvenz- und Sanierungsrecht 193; see also CERIL Statement 2023-2 on The European Commission Proposal for a Directive Harmonising Certain Aspects of Insolvency Law (by R Vriesendorp, I Tirado and S Madaus, with G-J Boon and D Taşman), available at www.ceril.eu.
[3]
Simplified winding-up/insolvency proceedings for innovative startups are to some extent addressed in the recent EC Proposal for the Regulation on the ‘28th regime corporate legal framework – ‘EU Inc.’ (COM(2026) 321 final).
[4]
See among the first commentators: S Pacchi, ‘La direttiva (UE) 2026/799 e il nuovo cantiere europeo del diritto della crisi’ Ristrutturazioni Aziendali (13 April 2026); J-L Vallens, ‘La directive 2026/799/UE du 30 mars 2026 portant harmonisation du droit de l’insolvabilité’ (2026) 16 Recueil Dalloz 725; J-L Vallens, ‘Aspects internationaux de la directive Insolvabilité III’ (2026) Bulletin Joly Entreprises en difficulté; see also F Benassi, ‘La revocatoria nella direttiva (UE) 2026/799 e il problema degli atti omissivi’ Ristrutturazioni Aziendali (11 May 2026); D Skauradszun and P Moffat, ‘Shortcomings in the Tracing of Digital Assets in the EU’s Insolvency III Directive’ (2026) 15 Laws 40.
[5]
On the issue in general, see R Bork and M Veder, Harmonisation of transactions avoidance laws (Intersentia 2022).
[6]
Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) [2015] OJ L 141/19. J-L Vallens, ‘Aspects internationaux de la directive Insolvabilité III’ (note 4).
[7]
Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I) [2008] OJ L177/6.
[8]
Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems [1998] OJ L166/45.
[9]
Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements [2002] OJ L168/43.
[10]
Directive (EU) 2019/1023 of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency) [2019] OJ L172/18.
[11]
Regulation (EU) No 650/2012 of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession [2012] OJ L201/107.
[14]
Directive (EU) 2024/1640 of the European Parliament and of the Council of 31 May 2024 on the mechanisms to be put in place by Member States for the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Directive (EU) 2019/1937, and amending and repealing Directive (EU) 2015/849 [2024] OJ L 2024/1640.
[15]
See also Recital 20. Relevant registers are those listed in the Annex A: 1. Cadastral registers; 2. Land registers; 3. Movable property registers, including registers of vehicles, ships and aircraft, where property rights are registered in such registers; 4. Registers of donations; 5. Mortgage registers; 6. Registers or databases containing information on the ownership of securities, such as central securities depositories, as defined in Article 2 of Regulation (EU) No 909/2014; 7. Registers of pledges, including lease agreements, and of sale-purchase agreements with retention of title; 8. Registers containing property seizure acts; 9. Registers of intellectual property rights, including patent and trademark registers.
[16]
Recital 22 states that ‘insolvency practitioners should […] be allowed to access information held in the bank account register indirectly, by requesting the designated courts or administrative authorities in the Member State where they were appointed to access the registers and perform the searches’. However, the same Recital adds that ‘Member States can adopt or maintain rules that provide for direct access and searches by insolvency practitioners in their national bank account registers and electronic data retrieval systems. In cases where insolvency practitioners have direct access and can carry out direct searches, Member States are not required to designate courts or authorities for the purpose of accessing and searching their national bank account registers or electronic data retrieval systems, but remain under the obligation to designate courts or authorities for access and searches through BARIS’. See also Article 4, para 3.
[17]
See CERIL Statement and Report 2025-2 on Reviewing the EIR 2015 (by G-J Boon and R Vriesendorp, with J. García Vázquez), available at www.ceril.eu. Further statements and reports are expected on the issue.
[20]
Case C-295/13 H v HK ECLI:EU:C:2014:2410; Case C-594/14 Kornhaas v Dithmar ECLI:EU:C:2015:806. Taking the cases together, the Court addressed § 64 GmbHG with respect to jurisdiction and applicable law. The German provision, on the one hand, identified persons obliged to request the opening of the proceedings (by penalising managing directors who fail to do so within three months of the insolvency) and, on the other, compelled managing directors to compensate the company for payments made after the latter becomes illiquid or over-indebted. § 64 GmbHG was transferred, with certain modifications, into § 15a-b InsO by the SanInsFoG reform. This legislative relocation consolidated within the InsO a liability regime that had already been widely regarded as an insolvency-law rule.
[22]
Case C-641/16 Tünkers France ECLI:EU:C:2017:847, para 22; Case C-649/16 Peter Valach ECLI:EU:C:2017:986, para 29; Case C-535/17 NK v BNP Paribas ECLI:EU:C:2019:96, para 28; Case C-47/18 Skarb Państwa ECLI:EU:C:2019:754, para 36.
[24]
W-G Ringe, in R Bork and K van Zwieten (eds), Commentary on the European Insolvency Regulation (2nd edn, OUP 2022), para 6.24. See also CERIL Report 2021-1 on Identifying annex actions under Article 6(1) of the European Insolvency Regulation prepared by CERIL Working Party (WP) 11 on Matters regarding the European Insolvency Regulation 2015 (S Madaus and B Wessels reporters).
[26]
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) [2012] OJ L 351/1.
[27]
See extensively A Leandro, Jurisdiction in EU Cross-Border Insolvency Law (Edward Elgar Publishing 2025) para 3.077 ff.
[28]
Cross-border scenarios would need to be assessed differently should the idea of a 28th regime come to fruition: see F J Garcimartín Alférez and C Paulus, ‘The 28th Insolvency Law: Reflections on a Lex Concursus Europaea’ (2025) 34(2) International Insolvency Review 428, 441 ff. See also the harmonisation initiative concerning simplified winding-up and insolvency proceedings for innovative start-ups contained in the Commission’s Proposal for a Regulation establishing a ‘28th regime corporate legal framework – EU Inc.’ (note 3). According to the Explanatory Memorandum, the relevant private international law issues would continue to be governed by the EIR: a principled solution that yet raises significant difficulties, as persuasively observed by F J Garcimartín Alférez, ‘The Insolvency Framework of the EU Inc: 27 × 27 = 729’, Oxford Business Law Blog (9 June 2026).